State ex rel. Perrine v. Alborn

[Cite as State ex rel. Perrine v. Alborn, 2012-Ohio-3051.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL. JUDGES:
SHARON PERRINE, ZONING Hon. Patricia A. Delaney, P.J.
INSPECTOR, PIKE TOWNSHIP, Hon. William B. Hoffman, J.
STARK COUNTY, OHIO, ET. AL. Hon. Sheila G. Farmer, J.
Plaintiffs-Appellees Case No. 2011CA00263
-vs-
OPINION
EDWARD CHARLES ALBORN, ET AL.
Defendants-Appellants
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2009CV01110
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 29, 2012
APPEARANCES:
For Plaintiffs-Appellees For Defendants-Appellants
CHARLES D. HALL III ROBERT H. CYPERSKI
Hall Law Firm 1201 30th St. N.W., Suite 102-B
610 Market Ave. North Canton, Ohio 44709
Canton, Ohio 44702
Stark County, Case No. 2011CA00263 2
Hoffman, J.
{¶1} Defendants-appellants Edward Alborn and Edna Elliot appeal the
November 3, 2011 Judgment Entry entered by the Stark County Court of Common
Pleas in favor of the State of Ohio ex rel. Sharon Perrine, Zoning Inspector, Pike
Township, Stark County, Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant Edna Elliott owns real property located at 2090 Riceford Road
S.W., Pike Township, Stark County, Ohio, consisting of 42.48 acres. The property is
zoned R-1, one and two family residential, under the Pike Township zoning regulations.
Appellant Edward Alborn resides on the property. In the past, Appellant Alborn
operated a number of businesses on the property, and claims he remains self-employed
at seventy-eight years of age. Alborn operated businesses of stripping coal, clay and
shale, trucking and performing fabrication and mechanical work. He continues to
perform some fabrication and mechanical repairs and some livestock farming to
supplement his Social Security income. He has not had an Ohio Vendor’s License, has
not held a business checking account, has not filed any Ohio or Federal Income Tax
returns, has not issued any 1099’s to suppliers or independent contractors, has not
issued any W-2’s to any employee, and has not held a Commercial Driver’s License for
more than four years. Appellants have never lawfully operated a junk yard or salvage
yard from the property.
{¶3} Appellee State of Ohio, ex rel. Sharon Perrine, Zoning Inspector, Pike
Township, Stark County filed a complaint against Appellants on March 19, 2009
asserting Appellants had discontinued their nonconforming use and were in violation of
Stark County, Case No. 2011CA00263 3
the zoning laws of Pike Township. Appellee filed a motion for summary judgment,
which the trial court denied.
{¶4} On September 13, 2010, the matter proceeded to a non-jury trial. On April
27, 2011, the Magistrate issued a decision finding Appellants were in violation of the
Pike Township Zoning Regulations, and ordered Appellant remove all items not
compatible with an agricultural or residential use within thirty days. Appellants filed
objections to the Magistrate’s decision.
{¶5} Via Judgment Entry of November 3, 2011, the trial court issued an order
modifying and adopting the Magistrate’s decision.
{¶6} Appellants now appeal, assigning as error:
{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING
THAT THE APPELLANTS ARE IN VIOLATION OF THE PIKE TOWNSHIP ZONING
RESOLUTIONS, AS THIS DECISION WAS AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.
{¶8} “II. THE TRIAL COURT COMMITTED AN ERROR IN DETERMINING
THAT MANY OF THE ITEMS ON THE PROPERTY COULD NOT BE USED FOR
AGRICULTURAL OR RESIDENTIAL USE AND THEREFORE ARE JUNK VEHICLES
AND MUST BE REMOVED FROM THE PROPERTY.
{¶9} “III. THE TRIAL COURT COMMITTED AN ERROR IN FAILING TO
DETERMINE THAT ENFORCING ZONING REGULATIONS OF PIKE TOWNSHIP
WILL SO INTEREFERE [SIC] WITH THE USE OF THE PROPERY [SIC] AS TO
CONSTITUTE A TAKING OF THE PROPERTY.”
Stark County, Case No. 2011CA00263 4
I., II, and III.
{¶10} Appellants’ assigned errors raise common and interrelated arguments;
therefore, we will address the assignments of error together.
{¶11} Upon review of an administrative appeal, a court of common pleas
considers whether the enforcement of a zoning resolution is supported by a
"preponderance of substantial, reliable, and probative evidence on the whole record."
R.C. 2506.04. An appellate court's review of the trial court's judgment is limited to
affirming the decision of the trial court unless the appellate court finds, as a matter of
law, the trial court's decision is not supported by a preponderance of reliable, probative
and substantial evidence. Id. Further, the appellate court is limited to reviewing the
judgment of the trial court strictly on questions of law. Id.{¶12} O.R.C. 519.02(A) governs non-conforming uses, providing:
{¶13} "The lawful use of any dwelling, building, or structure and of any land or
premises, as existing and lawful at the time of enactment of a zoning resolution or
amendment thereto, may be continued, although such use does not conform with such
resolution or amendment, but if any such nonconforming use is voluntarily discontinued
for two years or more, any future use of said land shall be in conformity with sections
519.02 to 519.25, inclusive, of the Revised Code. The board of township trustees shall
provide in any zoning resolution for the completion, restoration, reconstruction,
extension, or substitution of nonconforming uses upon such reasonable terms as are
set forth in the zoning resolution"
{¶14} The Pike Township Zoning Resolution complies with the requirements and
provides, "[w]henever a nonconforming use has been discontinued for a period of two
Stark County, Case No. 2011CA00263 5
years or more, any further use shall be in conformity with the provisions of this
Resolution." Pike Township Resolution, SECTION TEN, TITLE II(F).
{¶15} Here, Appellant Alborn testified at trial it has been more than two years
since he engaged in any strip mining of clay, shale or other materials from the property.
Further, the equipment at issue has been sitting idle, in the same position, in the open,
for two years. He testified at trial he has not engaged in sandblasting or painting
railroad stock for at least three years. He has not run a stone crushing operation for at
least four years. The truck driving business has been discontinued for over two years,
and two of the three semi-tractors have been sitting on the property unlicensed for
several years, unmoved. In addition, the evidence and testimony introduced at trial
support the trial court's finding numerous items and vehicles on the property are
damaged and inoperable. Based upon the above, we find the trial court’s decision was
supported by a preponderance of substantial reliable, and probative evidence.
{¶16} Appellant argues the ordinance so interferes with the use of his property it,
in effect, constitutes a taking. Jaylin Investments, Inc. v. Moreland Hills (2006), 107
Ohio St.3d 339. However, the application of a general zoning regulation to a particular
property is not a taking if it does not deny an owner all economically viable use of his
land, does not render the land valueless, or does not force only uses which, under the
circumstances, are highly improbable, practically impossible, or not economically
feasible. Id. The landowner bears the burden to prove there is no economically viable
use of his land. Valley Auto Leases of Chagrin Falls, Inc v. Auburn Twp. Bd. Of Zoning
Appeals (1988), 36 Ohio St.3d 184. A mere deprivation of some economic rights does
Stark County, Case No. 2011CA00263 6
not amount to a denial of all use of one's property, including the rights of possession
and use of the property. McKee v. Akron (1964), 176 Ohio St. 282.
{¶17} Here, Appellants have not demonstrated he has been deprived of any
economic right as a result of the zoning enforcement. Rather, the evidence introduced
at trial demonstrates Appellant Alborn has not had a business checking account for
several years, and has not operated a profitable business on the property for several
years prior to the action taken herein. Furthermore, Appellants have not shown the
zoning regulation denies them all economically viable use of the land. Accordingly, we
find Appellants have not met the necessary burden to demonstrate a taking.
{¶18} Appellants’ assignments of error are overruled, and the judgment of the
Stark County Court of Common Pleas is affirmed.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer __________________
HON. SHEILA G. FARMER
Stark County, Case No. 2011CA00263 7
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, EX REL.
SHARON PERRINE, ZONING
INSPECTOR, PIKE TOWNSHIP,
STARK COUNTY, OHIO, ET. AL. :
:
Plaintiffs-Appellees :
:
-vs- : JUDGMENT ENTRY
:
EDWARD CHARLES ALBORN, ET AL. :
:
Defendants-Appellants : Case No. 2011CA00263
For the reasons stated in our accompanying Opinion, and the judgment of the
Stark County Court of Common Pleas is affirmed. Costs to Appellants.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ Patricia A. Delaney _________________
HON. PATRICIA A. DELANEY
s/ Sheila G. Farmer___________________
HON. SHEILA G. FARMER